(1) Power of Court on Appeal. Upon an appeal from a judgment or order, the court may reverse, affirm, or modify the judgment or order of the district court as to any party. If the appeal is from a part of the judgment or order, the court may reverse, affirm, or modify that part of the judgment or order.

(2) Intermediate Orders. Upon an appeal from a judgment, the supreme court may review any intermediate order or determinationruling of the district court below which involves the merits and necessarily affects the judgment appearing upon the record transmitted or returned from the trial court.

(b) Civil Appeals; Power of Court on Review(3) Order for New Trial or Determination of Issue. Upon an appeal from a judgment or order, the supreme court may reverse, affirm, or modify the judgment or order as to any and all of the parties, and if necessary or proper may order a new trial of the entire cause or of some specific issue or issues, and if the appeal is from a part of the judgment or order, may reverse, affirm, or modify it as to the part appealed from.The court may order a new trial of the case or of an issue or issues.If, in the consideration of any appeal, it becomes apparent to the supreme court that some issue involved in the case has not been tried, or if tried has not been determined by the trial court, and that it is necessary or desirable to proper disposition of the case on appeal that the issue be determinedIf an issue or issues have not been tried or, if tried, not determined, the supreme court may remand the case to the trialdistrict court for thea determination of the issue or issues, without relinquishing jurisdiction of the appeal, and the supreme. The court may holddeferthe determination of the appeal in abeyance until the issue hasor issues have been determined by the trial court and the determination certified to the supreme court by the district court. In that case theThe proceedings had and the determination made in the trialof the district court, upon remand, are deemed to be part of the record on appeal in the case.

(4) Judgment or Decision of Court.In all cases theThesupreme court shallmust remit its final judgment or decision to the district court from which the appeal was taken to be enforced accordingly, and if . If the appeal was from a judgment, final judgment thereupon shall be entered in the court below in accordance therewith, except whenthe district court must enter final judgment in accordance with the court's judgment or decision, unless the courtorderedorders otherwise.

(c)(b) Criminal Appeals; Intermediate Orders. Upon an appeal from a verdict or judgment, the supreme court may review any intermediate order or ruling which involves the merits or which may have affected the verdict or judgment adversely to the appellant.

(d) Criminal Appeals;

(1) Power of Court on Review. Upon an appeal from a verdict, judgment, or order, the supreme court may reverse, affirm, or modify the verdict, judgment, or order appealed from, and may do any of the following:

(A) set aside, affirm, or modify any or all of the proceedings subsequent to or dependent upon the verdict, judgment, or order, and, if proper,;

(B)may order a new trial.;

(C) review any intermediate order or ruling which involves the merits or which may

have affected the verdict or the judgment adversely to the appellant.

(2) Remand.In either case, the action must be remanded to the trial courtThe court must remand the case, with proper instructions, together with theand its opinion, to the district courtof the court.

(c) District Court Proceedings upon Remand--Time Limitation. Upon remand by the supreme court for a new trial or other further proceedings in the district court, the proceedings must be commenced within one year from the date of the judgment, order, or opinion of the supreme court. If proceedings are not commenced in the district court within that time, the action must be dismissed unless, for good cause shown, the district court orders otherwise.

EXPLANATORY NOTE

Rule 35 was amended, effective .

Rule 35 represents an effort by the Committee to codifyincorporates in these rules four statutes relating to the scope of review by the Supreme Court in civil and criminal cases, all of which have been superseded. Subdivision (a) is taken from former N.D.C.C. § 28-27-28, except the last sentence of the statute regarding exceptions and a settled statement of the case was deleted. Subdivision (b) is a restatement of former § 28-27-29. Subdivision (c) is derived from § 29-28-27, and is similar in scope to subdivision (a), but it relates to criminal appeals. Subdivision (d) is derived from former § 29-28-28. The rule does not change existing appellate practice.

Rule 35 was amended, effective __________________. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.